Citation Nr: 1719686
Decision Date: 06/02/17 Archive Date: 06/14/17
DOCKET NO. 11-10 286 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, depression, and an adjustment disorder with depressed mood.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran and his spouse
ATTORNEY FOR THE BOARD
K. M. Walker, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army from August 1967 to February 1978.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.
In September 2011, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.
The Board remanded the case in April 2014 and June 2015 for further development. The case has since been returned for appellate review.
This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Board previously remanded the case, in pertinent part, to search for outpatient mental health records from Ireland Army Hospital at Fort Knox and the 209th General Dispensary in Germany, as well as any other appropriate location to request records of all mental health treatment and evaluations (mental health jacket) that the Veteran received during his period of service from August 1967 to April 1978. Following that remand, the AOJ requested records from Ireland Army Hospital dated in 1975 and 1976 and from the 209th General Dispensary dated from 1976 to 1978. However, the Veteran's service personnel records show that he served at Fort Knox from 1974 to 1976 and in Germany from 1976 to 1978. Thus, it appears that the AOJ did not search for any records from 1974 when he was stationed in Fort Knox. Therefore, an additional search must be made.
Moreover, the Board notes that the Veteran was afforded a VA examination in August 2014 in connection with the claim. However, the Board notes that the examiner did not address the Veteran's drinking and counseling in service in his rationale. Moreover, in light of additional evidence and the argument made by his representative, the Board finds that an additional medical opinion is needed.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should contact the National Personnel Records Center (NPRC) or any other appropriate facility to request the Veteran's psychiatric and mental health treatment and evaluations from August 1967 to January 1975.
A specific request should be made for mental health records dated in 1974 from the Ireland Army Hospital at Fort Knox.
As set forth in 38 U.S.C.A. §5103A(b)(3) and 38 C.F.R. §3.159(c)(2), the AOJ should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of the AOJ's attempts to locate his medical records as well as any further action to be taken.
2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including PTSD sub scales.
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should specifically consider the private medical records documenting various diagnoses.
It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner should identify all current psychiatric disorders.
For any diagnosis identified other than PTSD, the examiner should indicate when the disorder manifested and whether it is at least as likely as not that that the disorder is related to the Veteran's military service, to include any symptomatology or behavioral problems therein.
With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. If the examiner determines that the Veteran does not have PTSD, he or she should provide an explanation and discuss the other private medical records documenting such a diagnosis.
(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.
3. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs.
4. When the development has been completed, the AOJ should review the case on the basis of additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).